Citation Nr: 0941071
Decision Date: 10/28/09 Archive Date: 11/04/09
DOCKET NO. 08-29 884 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The Veteran served on active duty from August 1968 to August
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2008 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Lincoln, Nebraska.
FINDINGS OF FACT
1. Right ear hearing loss existed prior to the Veteran's
entry into active duty service.
2. The Veteran's pre-existing right ear hearing loss did not
permanently increase in severity during his active duty
service.
3. The medical evidence of record does not show current left
ear hearing loss related to the Veteran's military service or
any incident therein.
CONCLUSIONS OF LAW
Bilateral hearing loss was not incurred in or aggravated by
active military service, and cannot be presumed to have been
so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137,
1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306,
3.307, 3.309, 3.385 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
With respect to the Veteran's claim herein, VA has met all
statutory and regulatory notice and duty to assist
provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2009).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
Veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
The RO's April 2008 letter advised the Veteran of the
foregoing elements of the notice requirements. See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see
also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With
respect to the Dingess requirements, the RO's April 2008
letter provided the Veteran with notice of what type of
information and evidence was needed to establish disability
ratings, as well as notice of the type of evidence necessary
to establish an effective date. With this letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal.
In addition, the duty to assist the Veteran has also been
satisfied in this case. The RO has obtained the Veteran's
service treatment records and his identified post service
treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The RO has also obtained a medical opinion regarding the
etiology of the Veteran's current bilateral hearing loss.
See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally,
there is no indication in the record that any additional
evidence relevant to the issue being decided herein is
available and not part of the record. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Under these circumstances, no further notice or assistance to
the Veteran is required to fulfill VA's duty to assist in the
development of his claim herein. Smith v. Gober, 14 Vet.
App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela
Cruz v. Principi, 15 Vet. App. 143 (2001); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.
The Board has thoroughly reviewed all the evidence in the
Veteran's claims file. Although the Board has an obligation
to provide reasons and bases supporting this decision, there
is no need to discuss, in detail, all of the evidence
submitted by the Veteran or on his behalf. See Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that
the Board must review the entire record, but does not have to
discuss each piece of evidence). The analysis below focuses
on the most salient and relevant evidence and on what this
evidence shows, or fails to show. The Veteran should not
assume that the Board has overlooked pieces of evidence that
are not explicitly discussed herein. See Timberlake v.
Gober, 14 Vet. App. 122 (2000) (holding that the law requires
only that the Board address its reasons for rejecting
evidence favorable to the claimant).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303
(2009). Service connection for certain chronic diseases,
including sensorineural hearing loss, will be presumed if
they are manifest to a compensable degree within the year
after active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38
C.F.R. §§ 3.307, 3.309 (2009). Service connection may also
be granted for any disease initially diagnosed after service,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi,
3 Vet. App. 503, 505 (1992).
In order to prevail on the issue of service connection there
must be medical evidence of a current disability; medical
evidence, or in certain circumstances, lay evidence of in-
service occurrence or aggravation of a disease or injury; and
medical evidence of a nexus between an in-service injury or
disease and the current disability. See Hickson v. West, 12
Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App.
341, 346 (1999).
Historically, the Veteran served on active duty in the Army
from August 1968 to August 1970. His report of separation,
Form DD 214, listed his inservice specialty as military
police.
The Veteran's August 1968 induction examination noted that
his ears were normal. An audiological evaluation, performed
at that time, revealed pure tone thresholds, in decibels, as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
40
50
LEFT
5
0
0
5
30
A review of his service treatment records was silent as to
any complaints of or treatment for hearing loss. His March
1970 separation examination noted that his ears were normal.
An audiological evaluation, performed at that time, revealed
pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
0
0
0
-
0
LEFT
0
0
0
-
0
On a March 1970 medical history report, completed pursuant to
his separation examination, the Veteran denied having any
history of hearing loss.
In April 2008, the Veteran filed his original claim seeking
service connection for bilateral hearing loss. He attributes
this condition to his inservice exposure to loud noise. At
his April 2009 hearing before the Board, the Veteran
testified that he was exposed to loud noise from the use and
operation of .45 caliber pistols, M-16 machine guns, and M-79
grenade launchers. He indicated that these weapons were used
in training, and in actual riot suppression activities.
In May 2008, a VA audiological examination was conducted.
The VA examiner noted that the Veteran's claims folder had
been reviewed. The report noted the Veteran's inservice
history of exposure to firearms, grenade launchers and
generators. As for his post service noise exposure, the
report noted that the Veteran had spent 15 years as a welder,
and another 15 years as a welding inspector. It also noted
his recreational noise exposure from power tools. In
addressing his military records, the report noted that the
Veteran's August 1968 entrance examination revealed a mild to
moderate hearing loss in the right ear. It also noted that
his March 1970 separation examination revealed hearing within
normal limits bilaterally. On the authorized audiological
evaluation, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
25
55
55
55
LEFT
25
30
30
55
65
Speech audiometry revealed speech recognition ability of 96
percent in both ears. The report concluded with a diagnosis
of bilateral sensorineural hearing loss and tinnitus. The VA
examiner further opined that it was less likely as not that
the Veteran's current hearing loss was related to his
military noise exposure. In support of this conclusion, the
VA examiner noted that the Veteran's separation examination
revealed normal audiological findings.
Impaired hearing will be considered a disability when the
auditory threshold in any of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least 3 of the frequencies 500,
1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater;
or when speech recognition scores using the Maryland CNC Test
are less than 94 percent. 38 C.F.R. § 3.385 (2009).
A. Right Ear
After reviewing the evidence of record, the Board concludes
that service connection is not warranted for right ear
hearing loss.
By statute, a Veteran will be considered to have been in
sound condition when examined, accepted, and enrolled for
service, except as to defects, infirmities, or disorders
noted at entrance into service, or where clear and
unmistakable evidence demonstrates that an injury or disease
existed prior thereto and was not aggravated by service. 38
U.S.C.A. § 1111 (West 2002). Only such conditions as are
recorded in examination reports are to be considered as
noted. 38 C.F.R. § 3.304(b) (2009).
In this case, the Veteran's March 1978 entrance examination
report noted that he had pre-existing hearing loss at the
time he entered into military service. Specifically, the
Veteran was shown to have pure tone thresholds, in decibels,
of 40 and 50 at the 3000 and 4000 Hertz level, respectively.
See 38 C.F.R. § 3.385. Moreover, the VA examiner in May 2008
described these findings as reflective of mild to moderate
hearing loss in the right ear. Accordingly, the Board finds
that a right ear hearing loss was noted at entrance into
service, and the presumption of soundness does not apply.
See 38 U.S.C.A. § 1111.
If a pre-existing disorder is noted upon entry into service,
service connection may be granted based on aggravation during
service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. §
3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.
Cir. 2004). A pre-existing injury or disease will be
considered to have been aggravated by active military, naval,
or air service, where there is an increase in disability
during such service, unless there is a specific finding that
the increase in disability is due to the natural progress of
the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).
Independent medical evidence is needed to support a finding
that the pre-existing disorder increased in severity in
service. See Paulson v. Brown, 7 Vet. App. 466, 470-471
(1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity
during service. 38 C.F.R. § 3.306(b). However, aggravation
of a pre-existing condition may not be conceded where the
disability underwent no
increase in severity during service on the basis of all the
evidence of record pertaining to the manifestations of the
disability prior to, during, and subsequent to service. 38
U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown,
8 Vet. App. 398, 402 (1995) (holding that the presumption of
aggravation created by section 3.306 applies only if there is
an increase in severity during service); Akins v. Derwinski,
1 Vet. App. 228, 231 (1991).
After reviewing the Veteran's claims folder, the Board finds
that there is no evidence that the Veteran's pre-existing
right ear hearing loss underwent an increase in severity
during service. A review of his service treatment records is
completely silent as to any complaints of or treatment for
right ear hearing loss. In addition, comparison of the pure
tone thresholds, in decibels, of the audiological findings on
his entrance and separation examination indicated that the
Veteran's hearing acuity improved in all decibel levels
tested, and the VA examiner in May 2008 noted that the
Veteran's separation examination revealed right ear hearing
acuity within normal limits. Davis v. Principi, 276 F.3d
1341, 1345 (Fed. Cir. 2002)(38 U.S.C.A. § 1153 requires an
increase in the severity of the preexisting condition, as
distinguished from the mere recurrence of manifestations of
the pre-service condition.); see Hensley v. Brown, 5 Vet.
App. 155, 159 (1993); Jensen v. Brown, 4 Vet. App. 304, 306-
307 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).
Additionally, there is no evidence of any post service
treatment having been sought for this right ear hearing loss
for more than 37 years following the Veteran's discharge form
military service. See Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000) (holding that aggravation in service may be
rebutted by the absence of medical treatment for the claimed
condition for many years after service). This period without
complaints or treatment is evidence that there has not been a
continuity of symptomatology, and it weighs against the claim
herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991)
(holding that VA did not err in denying service connection
when the Veteran failed to provide evidence which
demonstrated continuity of symptomatology, and failed to
account for the lengthy time period for which there is no
clinical documentation of his low back condition). Finally,
the competent medical evidence of record indicates that it
was not likely that the Veteran's current right ear hearing
loss was incurred during his military service.
Specifically, the VA examiner, who conducted the May 2008 VA
audiological examination, found that the Veteran's current
right hearing loss was not likely related to his military
service. In reaching this conclusion, the VA examiner
reported that the Veteran's audiological evaluation on
separation revealed right ear hearing acuity within normal
limits. Thus, the evidence does not show that the Veteran's
pre-existing bilateral hearing loss worsened during service.
Since there is no competent evidence that the right ear
hearing loss worsened in service, the Board finds that
presumption of aggravation does not arise. See 38 U.S.C.A.
§§ 1153; 38 C.F.R. § 3.306; see also Browder v. Derwinski, 1
Vet. App. 204, 206-207 (1991). The presumption of
aggravation applies where there was a worsening of the
disability in service, regardless of whether the degree of
worsening was enough to warrant compensation. Browder, 1
Vet. App. 207. However, in the present case, there is no
competent evidence of worsening of the pre-existing bilateral
hearing loss in service. See Wagner, 370 F. 3d. at 1096.
In this case, the Veteran's statements are competent evidence
that he was exposed to loud noise during service. However,
the Veteran's contentions that his current right ear hearing
loss is related to his military service, as a layman, cannot
be considered competent evidence on medical causation and,
moreover, the Board may not accept unsupported lay
speculation with regard to medical issues. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992).
Thus, in the absence of competent medical evidence that the
Veteran's current right ear hearing loss is related to his
military service, the preponderance of the evidence is
against the Veteran's claim for service connection for right
ear hearing loss. As such, the benefit-of-the-doubt rule
does not apply, and the claims must be denied. 38 U.S.C.A. §
5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
B. Left Ear
Based upon a longitudinal review of the record, the Board
concludes that service connection is not warranted for left
ear hearing loss. His service treatment records are silent
as to any complaints of or treatment for left ear hearing
loss. Moreover, his March 1970 separation examination noted
that his ears were normal, and an audiological examination
revealed normal findings. See Curry v. Brown, 7 Vet. App.
59, 68 (1994) (holding that contemporaneous evidence has
greater probative value than history as reported by the
appellant). In addition, comparison of the pure tone
thresholds, in decibels, of the audiological findings on his
entrance and separation examination indicated that the
Veteran's hearing acuity improved in all decibel levels
tested. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
Thereafter, post service records failed to document any
complaints of or treatment for hearing loss for more than 37
years after his discharge from the service. This expansive
period without complaints or treatment is evidence that there
has not been a continuity of symptomatology, and it weighs
heavily against the claim herein. See Mense v. Derwinski, 1
Vet. App. 354, 356 (1991).
Moreover, the Veteran, as a lay person, cannot provide
competent evidence by his statements alone that observable
symptoms are manifestations of chronic pathology or diagnosed
disability. Savage v. Gober, 10 Vet. App. 488, 495-98
(1997).
As for the Veteran's contentions regarding his inservice
exposure to loud noise, his report of separation listed his
inservice specialty as a military policeman. His awards and
decorations do not connote involvement in combat. However,
the Veteran's statements are competent evidence as to what he
experienced in service, such as shooting a .45 caliber
pistol, M-16 machine gun, and grenade launcher. The Board
has no reason to doubt the credibility of the Veteran, and
finds that the Veteran's service is consistent with at least
some inservice exposure to loud noise. Nevertheless, the
Veteran's statements alone can not be considered competent
evidence on medical causation, and the Board may not accept
unsupported lay speculation with regard to medical issues.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Only
independent medical evidence may be considered to support
Board findings. Colvin v. Derwinski, 1 Vet. App. 171, 175
(1991). Thus, the Veteran's statements on causation cannot
establish a link between his current hearing loss and his
military service ending more than forty years ago.
In this case, the Veteran's service separation examination
shows normal hearing acuity. There is no evidence of
continuity of symptomatology, and the first medical evidence
of bilateral hearing loss was more than 37 years after
service discharge. There is also no medical evidence of
record linking the Veteran's current left ear hearing loss to
his military service. In fact, the only medical opinion of
record, the May 2008 VA examination, concerning this issue
has been answered in the negative.
The Board has considered the benefit of the doubt doctrine
when making these findings. However, the preponderance of
the evidence is against the Veteran's claim. 38 U.S.C.A.
5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Accordingly, service connection for hearing loss in either
ear or bilateral hearing loss is not warranted.
ORDER
Service connection for bilateral hearing loss is denied.
____________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs